Implied TPO in Conservation Area

[daltontrees]

I've had  acoupel of itneresting ones recently tyhat maybe illustrates the issues.

 

The first was that a Council was adopting (in its published guidance) a higher standard of proof for something than the law required. I have gone through the Council like a wrecking ball, they won't do this to me or anyone else again. I have written to the Chief Executive (yes, paper) demanding that the guidance be withdrawn, as it is ultra vires. I am like a Jack Russell with these things I will not let it go, and I fully expect the guidance to be withdrawn. The monitoring officer is on it a tthe moment.

 

The second was a high hedge case, the Council granted a Notice, my client thought the height reduction was excessive (it was) and appealed. My appeal found in his favour but didn't go far enough. I discovered the appeal Reporter hadn't measured the hedge, and so the calculated action hedge height was wrong. DPEA said the only remedy was a JR at the Court of Session (£10K, and within 6 weeks) but I argued that we were not disputing the result of the calculation but the failure to measure and therefore to use the right info. DPEA dingied it. I complained. Dingied it still. Appealed to ombudsman, who after 6 months said no point in upholding the complaint since the DPEA had no legal mechanism to change its decision anyway. I protested that even if no remedy was possible it was part of the ombudsman's remit to report anyway so that this could be used as evidence of a basis to change the law if necessary. Eventually the obudsman took up the case again, I thunk someone went out and checked the measurements, found a mistake and concluded that this probably resulted in an unfair High Hedge notice and begrudgingly the DPEA admitted the error but said it couldn't do anything about it. However I can now use this as proof that the Notice is unenforceable. In other words, we got there eventually. But i think anyone less tenacious would have given up long ago as evey possible obstacle was presented. It was exhausting, to be honest. 2 1/2 years!

[john87]

33 minutes ago, daltontrees said:

Indeed, why complain except to help the next guy? If you are within rights to remove tree, do it and let the Council decide whther it should try and do anyhting about it. Its legal dept will probably close the file at that point.

Exactly.. Say your car tax is up at the end of the month. That is it, no if's or but's, it has expired.. Same for their six weeks, once it is up, saw away happily, and if the council do not like it, too bad.. The council taking longer and then blaming "lack of resources" is irrelevant.. Try telling a court; "well, i know my tax is up, but it is lack of resources you see"

 

john..

[john87]

20 minutes ago, daltontrees said:

I've had  acoupel of itneresting ones recently tyhat maybe illustrates the issues.

 

The first was that a Council was adopting (in its published guidance) a higher standard of proof for something than the law required. I have gone through the Council like a wrecking ball, they won't do this to me or anyone else again. I have written to the Chief Executive (yes, paper) demanding that the guidance be withdrawn, as it is ultra vires. I am like a Jack Russell with these things I will not let it go, and I fully expect the guidance to be withdrawn. The monitoring officer is on it a tthe moment.

 

The second was a high hedge case, the Council granted a Notice, my client thought the height reduction was excessive (it was) and appealed. My appeal found in his favour but didn't go far enough. I discovered the appeal Reporter hadn't measured the hedge, and so the calculated action hedge height was wrong. DPEA said the only remedy was a JR at the Court of Session (£10K, and within 6 weeks) but I argued that we were not disputing the result of the calculation but the failure to measure and therefore to use the right info. DPEA dingied it. I complained. Dingied it still. Appealed to ombudsman, who after 6 months said no point in upholding the complaint since the DPEA had no legal mechanism to change its decision anyway. I protested that even if no remedy was possible it was part of the ombudsman's remit to report anyway so that this could be used as evidence of a basis to change the law if necessary. Eventually the obudsman took up the case again, I thunk someone went out and checked the measurements, found a mistake and concluded that this probably resulted in an unfair High Hedge notice and begrudgingly the DPEA admitted the error but said it couldn't do anything about it. However I can now use this as proof that the Notice is unenforceable. In other words, we got there eventually. But i think anyone less tenacious would have given up long ago as evey possible obstacle was presented. It was exhausting, to be honest. 2 1/2 years!

Very interesting stuff, It goes to show, that councils will try to lie as to what the law is and when you come up with the term "ultra vires" do not like it very much..

 

Nothing they can do though as no basis in law..

 

john..

[kevinjohnsonmbe]

It’s a bit of a tangent - but still makes me smile...

 

Had a 5 day exemption on a TPO’d tree - stuck it in, checked it had been received, checked again day 5 to see if TO had responded - tumbleweed. 
 

It was probably around day 8 (the Monday following expiration of 5 days on the Friday)  when we were on task that the phone rang. 
 

It was the TO saying he was nearby and asking if I had a contact number and address for the homeowner. 
 

My reply “... can you hear chainsaws? Just follow that noise...!”

 

A brief ‘discussion’ ensued whereby he sought to challenge the validity of the exemption but that was easily batted off as subjective. 

[Khriss]

And , just a thought here , the ' justification on felling'  this here tree under a Conservation Area ? K

[daltontrees]

49 minutes ago, Khriss said:

And , just a thought here , the ' justification on felling'  this here tree under a Conservation Area ? K

No comprende!? You don't need to justify felling in a CA. Except retrospectively when exceptions are relied on.

[Khriss]

7 minutes ago, daltontrees said:

No comprende!? You don't need to justify felling in a CA. Except retrospectively when exceptions are relied on.

My thinking was has it rubbed the TO up the wrong way  K

[Paul in the woods]

23 minutes ago, Khriss said:

My thinking was has it rubbed the TO up the wrong way  K

What's the right way to rub a tree officer? 😱

[Khriss]

3 minutes ago, Paul in the woods said:

What's the right way to rub a tree officer? 😱

Behave  K

[Treerover]

It’s a bit of a tangent - but still makes me smile...
 
Had a 5 day exemption on a TPO’d tree - stuck it in, checked it had been received, checked again day 5 to see if TO had responded - tumbleweed. 
 
It was probably around day 8 (the Monday following expiration of 5 days on the Friday)  when we were on task that the phone rang. 
 
It was the TO saying he was nearby and asking if I had a contact number and address for the homeowner. 
 
My reply “... can you hear chainsaws? Just follow that noise...!”
 
A brief ‘discussion’ ensued whereby he sought to challenge the validity of the exemption but that was easily batted off as subjective. 

This is also my concern, is that the TO turns up tomorrow mid morning whilst the tree is being removed .
What then ?
On the planning notes it details 03/11 as target date for determination, and yet this is 6 weeks and 2 days from the registered valid date ?
What are they able to do by this point in proceedings ?